If you like your gas-powered car or truck, you cannot keep it according to the Biden Administration’s final Clean Air Act vehicle emission rules. On April 12, 2023, the Environmental Protection Agency (“EPA”) issued a proposed rule for carbon dioxide emissions that limits the amount generated by cars and trucks from 2027 through 2032. On March 20, 2024, EPA finalized the rules for Model Year 2027 and later light and medium-duty vehicles.
In order to meet the standards, electric vehicles (“EV”) will need to account for two-thirds of car and light truck sales by 2032. This mandate is even more aggressive than President Biden’s August 2021 Executive Order that set the lofty goal of having 50% EV sales by 2030. Based on the 2021 EPA standards, EPA’s emission standard was a grams/mile of CO2 equivalent of a fleet average of 161 g/m for the 2026 model year. By comparison, EPA’s new proposed vehicle standard sets an emission limit of 152 g/m for 2027 cars and trucks. The standard escalates each year until the 2032 period when the limit is 85 g/m. To meet the 2032 goal, standard vehicles would be required to meet a fuel economy standard of around 100 miles per gallon.
Although EPA is attempting to use the Clean Air Act emission limits to regulate emissions, this rule will effectively force US automakers to phase out gas-powered vehicles and produce EVs. Currently, EVs only account for around 6% of vehicle sales, so it is difficult to imagine how automakers, or the country will be able to transition to meet EPA’s mandates in the next decade, particularly considering slow sales and reluctant consumers.
As we have reported in prior articles, there are also significant issues in transitioning to large scale EV use by US consumers and businesses. Despite massive comments on the proposed EPA rule, they apparently did not deter the Biden Administration and EPA in setting car and truck emission standards that will be incredibly expensive and disruptive for citizens.
First, EVs are substantially more expensive than gas-powered vehicles ranging from 10% to 40% more. In an attempt to offset expense concerns, EPA has suggested that the rules are feasible due to limited per-vehicle technology costs of $1,200 for light-duty vehicles and subsidies and tax credits under the Inflation Reduction Act of up to $7,500 for the purchase of a new plug-in hybrid or battery EV. Even accounting for the subsidies, the Energy Information Administration recently forecast that EVs will only make up 15% of sales in 2030 and 19% in 2050. The report also noted that although EVs are popular among luxury cars, they “remain less competitive against conventional gasoline-powered cars and light trucks serving the mass market.”
The US electrical grid currently does not have sufficient capacity to charge an EV car and truck fleet even if consumers transition to the level of EV use mandated under EPA’s new rules. The EV market is about 5% of the current auto market or 1.17 million vehicles. By 2032, to meet EPA’s emission standards approximately 27 million EVs will be required. Residential neighborhoods do not have sufficient electrical capacity to sustain large-scale EV charging during peak night-time hours. Presently there are approximately 4 million charging stations. To serve the needs of 27 million EVs by 2030, the country would need approximately 35 million charging stations. Who is going to build and pay for the electrical infrastructure necessary to create that number of charging stations in the country?
In addition, the massive spike in charging stations will require a huge amount of electrical grid capacity that does not presently exist. Without a massive expansion in the nation’s power grid, adding millions of EV charging stations will severely tax the US electrical grid. Notably, states such as New York, California and Texas presently operate at around 90-95% grid capacity. The summer cooling season causes many states to max out available capacity and states such as Texas and California have seen brown-outs and blackouts. Without massive changes to the electrical grid, the country could be subject to significant blackouts like California and Texas experience.
Finally, the Biden Administration EV mandate fails to account for international security and energy independence to protect the interest of US citizens and businesses. As we have reported in this column previously, EVs require lithium, copper, and cobalt for battery manufacturing. The vast majority of these minerals are mined in areas of the world that are not friendly to US interests. Significantly, China and Chinese-owned state industries have taken steps to acquire control of mining and processing companies that control the precious metals necessary for EV production. There are 19 cobalt mines in the Congo and 15 are controlled by the Chinese government or entities. Based on recent tensions with China, it makes little strategic sense for the Biden Administration to mandate US companies and consumers become further dependent on Chinese-controlled materials to meet an emission standard that can only be attained through transformation to EV use.
Reactions to the proposed rule have been quite stark. In announcing the final rule, EPA Administrator Michael S. Reagan said that ‘[w]ith transportation as the largest source of U.S. climate emissions, these strongest-ever pollution standards for cars solidify America’s leadership in building a clean transportation future and creating good-paying America jobs, all while advancing President Biden’s historic climate agenda.” Environmental groups have lauded the final rule. Abigal Dillen, President of Earthjustice stated that “[t]he Environmental Protection Agency has taken a major step forward to clean up tailpipe pollution and address the climate crisis by accelerating the essential transition to clean cars and trucks. These standards make clear what we already know: the future of cars is electric. And there is more work ahead to clean up pollution and modernize our transportation sector.”
The Competitive Enterprise Institute’s Center on Energy and Environmental called the new emission rules “one of the most extreme rules ever finalized by a federal agency.” David Holt, President of Consumer Energy Alliance said “[i]t is disappointing that the Biden Administration continues to be actively working against its stated goal of ‘equipping the American middle class to succeed. While electric vehicles clearly have a role in our vehicle mix, the middle class cannot succeed with the EPA forcing an unworkable, expensive EV quota on working class families. State mandates have not led to widespread public adoption of EVs-sales are actually in decline.”
The proposed EPA rule is already being challenged in the courts on various grounds. A group of twenty-five attorney generals filed a proceeding against the final rules. Kentucky’s Attorney General Russell Coleman said “The Biden Administration is willing to sacrifice the American auto industry and its workers in service of its radical green agenda. We just aren’t buying it. Demand for EVs continue fall, and even those who want to buy a car can’t afford it amid historic inflation.” The challenge was filed in the United States Court of Appeals for the D.C. Circuit and alleges that the rule exceeds the EPA’s lawful authority and is arbitrary and capricious, mandating that it be vacated.
The Biden Administration’s self-pronounced war on fossil fuel has now taken a huge leap with the EPA’s final vehicle emission rules that will require two-thirds of all vehicles to be EVs by 2032. Americans would be well served to educate themselves on EPA’s actions and vote like their freedom, safety, and lifestyle depend on election outcomes.
George S. Van Nest is Partner in Underberg & Kessler LLP’s Litigation Practice Group and chair of the firm’s Environmental Practice Group. He focuses his practice in the areas of environmental law, development, construction, and commercial litigation.
Reprinted with permission from The Daily Record and available as a PDF file here.